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Posts Tagged ‘circuit split’

The Fourth Circuit today joined the Seventh and Eighth Circuits in their split from the Ninth Circuit over the correct application of Georgia v. Randolph, 547 U.S. 103 (2006), in a situation in which consent to search a shared home was given by one person with authority to consent in the absence of another individual who had previously refused consent. Compare United States v. Henderson, 536 F.3d 776 (7th Cir. 2008) (requiring physical presence of objecting co-tenant), and United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (en banc) (same), with United States v. Murphy, 516 F.3d 1117, 1125 (9th Cir. 2008) (allowing prior co-tenant’s refusal to operate even in the absence of continuing physical presence).  The court also upheld the federal anti-stalking statute, 18 U.S.C. § 2261A(2)(A), against a vagueness challenge. Judge Wilkinson wrote the opinion for the court in United States v. Shrader, which was joined in by Judge Motz and Judge Shedd.

With respect to the circuit split over Georgia v. Randolph, the opinion states that the Ninth Circuit’s approach of allowing refusal to operate even in the absence of the objecting co-tenant raises practical problems:

How broadly is constructive knowledge of a suspect’s prior refusal to consent to be imputed to other officers? Must a suspect expressly indicate that he has changed his mind in the future, or may that be assessed from the totality of the circumstances? Is there some point at which the passage of time renders a prior objection inoperative? The Murphy interpretation of Randolph would involve courts in such questions, diverting attention from the basic social expectations that underlie not only the opinion in Randolph, but the larger corpus of Fourth Amendment jurisprudence. Careful observance of the requirement that an objecting cotenant be physically present thus not only shows fealty to the Supreme Court’s precedent, but also focuses police and courts on the customary norms that form the basis for this area of law.

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The Fourth Circuit issued an opinion today unanimously affirming the district court in United States v. McKenzie-Gude. Judge Motz wrote the opinion, which was joined in by Judge King and Judge Duncan. The appeal focused on the legality of a search of a residence where the defendant, 18 years old at the time, allegedly possessed an AK-47 and explosive chemicals. The police obtained a warrant and ultimately seized from the defendant’s bedroom “several weapons, assorted gun parts, two bullet-proof vests, hundreds of rounds of ammunition, chemicals and other materials that could be used to make explosive devices, and instructions for making such devices.”

The problem with the search is that the affidavit in support of the warrant never linked the address of the residence to be searched (which was in the affidavit) with the defendant (who was linked in the affidavit with past possession of an AK-47 and explosive chemicals). The residence to be searched was the defendant’s residence, but the affidavit never said so. At the same time, uncontroverted information known to the police indicated that the defendant resided at the address to be searched.

The government conceded that the affidavit lacked the necessary connection between the defendant and the residence to be searched, but argued under Leon that the officers executing the warrant “harbored an objectively reasonable belief in the existence” of the link between the defendant’s alleged criminal activity and the residence to be searched. If the officers were entitled to rely not only on the affidavit but also additional evidence known to them, the answer to that question is obviously yes. According to the Fourth Circuit, then, “the question before us is whether, in determining an officer’s good faith, a court may properly look beyond the facts stated in the affidavit and consider uncontroverted facts known to the officers but inadvertently not disclosed to the magistrate.” The court answered that question in the affirmative, stating that “[w]e have consistently rejected the notion that reviewing courts may not look outside the four corners of a deficient affidavit when determining, in light of all the circumstances, whether an officer’s reliance on the issuing warrant was objectively reasonable.”

The court notes in a footnote that the Sixth Circuit and Ninth Circuit have held that Leon good faith reliance can be measured only by what is in an officer’s affidavit. By contrast, the Seventh, Eighth, and Eleventh Circuits have adopted the rule followed by the Fourth Circuit.

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